Legislators seek Supreme Court relief

Some count on milder guidelines to fix state’s school-finance formula

Topeka  Some legislators are counting on the Kansas Supreme Court to rescue them from a judge's suggestion the state's schools need as much as $1 billion more annually, and that the state should radically redistribute the money it already spends.

They think the justices will overturn major portions -- or perhaps all -- of a sweeping Dec. 2 preliminary order from Shawnee County District Judge Terry Bullock, who said the state's 1992 school-finance law was constitutionally flawed.

Bullock said the state spent too little on its schools and unfairly distributed what it did spend on its 302 school districts. He said the deficiencies in the law kept districts from ensuring that poor and minority students perform as well as other pupils on standardized tests. Bullock gave legislators and Gov. Kathleen Sebelius until July 1 to fix the flaws he identified.

Republican leaders argue that Bullock's ruling attempts to set policy for the Legislature and are willing to gamble that a Supreme Court ruling will be more favorable.

"How could we get a worse deal?" said House Speaker Doug Mays, R-Topeka. "It's not possible to do worse than we did out of Bullock's decision."

Even before Bullock ruled, Sebelius, a Democrat, announced plans to submit a school-finance plan to legislators when they convene their 2004 session on Jan. 12.

"I'm hoping that we resolve this as a state with elected leaders, myself and the legislators," she said during a recent interview with The Associated Press. "I'm hoping that people take seriously our responsibility to have wonderful education for all Kansas kids and come ready to work on it."

And Alan Rupe, a Wichita attorney representing the parents and administrators in the Dodge City and Salina school district whose 1999 lawsuit led to Bullock's ruling, questioned some legislators' strategy of relying on the Supreme Court for relief.

"They're dead wrong," Rupe said. "They're pushing a huge rock up a high hill if they think the Supreme Court is going to reverse what Judge Bullock did."

But that's just not an opinion shared in some Statehouse circles.

"There is a reasonable expectation that they would significantly modify Judge Bullock's order," said Sen. John Vratil, R-Leawood, an attorney who represented Johnson County's Blue Valley school district in a previous school-finance lawsuit.

After the 1992 law was enacted, critics, including the Blue Valley district, challenged it in court.

Judge takes different stance

In 1994, the Supreme Court upheld the law, saying, "In this sphere of responsibility, courts have no power to overturn the law enacted by the Legislature within constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such a case lies with the people through the political process."

Said Vratil, "Bullock kind of took the opposite approach," and seemed far more willing to substitute his judgment for the Legislature's.

Senate President Dave Kerr also sees the 1994 Supreme Court decision as reason to believe the justices will modify Bullock's order.

For example, said Kerr, R-Hutchinson, Bullock criticized a provision of the 1992 law that provides additional dollars to school districts with small student enrollments. The Supreme Court specifically upheld that provision in its 1994 decision.

In addition, Kerr said, changes in the law since 1992 have added money for programs designed to help poor children and for larger school districts -- in theory helping the very people who sued the state.

"We think there are some things that have not been brought forward with enough emphasis, including, most especially, the review in '94 by the Supreme Court," Kerr said.

No way to pay

Mays argued that Bullock considered education funding in a vacuum, without adequately considering how legislators weigh demands for new spending with Kansans' ability to pay.

For example, Bullock suggested the state's $2.6 billion in aid could be as much as $1 billion short of what is necessary to provide all students with a suitable education. The judge also implied that phasing in adequate funding was unacceptable, because some children would still get left behind.

$1 billion needed

But to raise $1 billion the state would have to increase its 5.3 percent sales tax to 8.5 percent or more. Or, individual income taxes would have to increase 54 percent.

Even a mix of sources could result in "horrendous tax increases," Mays said, giving him a reason to want a Supreme Court review.

"I would hope that they would have a little more common sense and take into consideration that there are other things government has to do besides education and that taxpayers can't just empty their bank accounts and sell all their property to pay taxes," Mays said.